Saturday, October 27, 2018

Google will likely ask the Supreme Court for a second time to review API copyrightability

As I wrote about six months ago when Google was preparing a petition for en banc rehearing of the Federal Circuit's Oracle v. Google Android-Java copyright decision, I'm not going to reiterate my longstanding positions (which haven't changed) on that case. However, Google filed an application for extension of time within which to file a petition for a writ of certiorari (request for Supreme Court review) about a week ago (PDF on Supreme Court website), so I wanted to update my readers in purely procedural terms.

In late August, the Federal Circuit denied Google's petition for a full-court review of a decision that (as I predicted) held the incorporation of many thousands of lines of Java API declaring code into Android did not constitute fair use.

Without the requested extension to January 25, 2019 (which was granted four days ago), Google would have had to file its cert petition in late November.

This time around, Google is trying its luck with a new Supreme Court counsel: Williams & Connolly's Kannon Shanmugam. Presumably, Oracle will continue to work with Orrick's Joshua Rosenkranz, who scored two Federal Circuit wins over Google on Oracle's behalf and fended off Google's original petition for writ of certiorari (which was about copyrightability). What he and his team have achieved in this case, and in some others, is nothing short of amazing.

As Google's application for an extension of time noted, its recent en banc petition related to both copyrightability and "fair use." I venture to guess Google's second cert petition will likewise raise both issues. One of Oracle's key arguments against the first cert petition (though we'll never know which argument bore most weight with the Supreme Court a few years ago) was prematurity: there had not been a final judgment on infringement. Chances are Google will try again.

This is now the longest-running smartphone IP dispute. It started more than eight years ago--in mid-August 2010--with Oracle's original complaint in the Northern District of California. Even Apple v. Samsung ended after "only" about seven years.

From a "justice delayed is justice denied" point of view, I don't think anyone can blame Oracle for presumably fighting very hard against Google's cert petition. However, as an app developer and IP blogger I would like the Supreme Court to grant cert--and to affirm both Federal Circuit opinions. That would provide definitive legal certainty, nationwide, on questions that many of us care about (no matter on which side we come down).

Fortunately, there is no vacancy on the Supreme Court. As some of you may have noted on Twitter and/or LinkedIn, I supported the #ConfirmKavanaugh campaign at all stages.

Share with other professionals via LinkedIn: